Wednesday, September 09, 2009

Screwed Since 1946! Updated! Unscrewed, but dead...

Almost four years ago I was at a table in a sprawling upstairs room in the American Embassy in Manila surrounded by a multitude of VA ratings specialists and review officers, all in their respective cubes or moving about the room doing what bureaucrats do. Reviewing several stacks of veterans’ case files I endeavored to learn how I could best help them in my role as a veteran’s service officer. Over the course of the morning I quickly made my way through the formidable mound of volumes, scribbling notes as fast as my arthritic fingers would allow.

I paid particular attention to one huge case file containing four thick brown volumes that easily stacked up to almost two feet. That’s a lot of documents. I grabbed Volume I and flopped it open with a thud. The first entries started late in 1946. It was awkward reading them as I had to lift the heavy mass of pages stacked upon the original papers all held together by two extra long metal prongs.

I got through the first half dozen pages and in spite of myself blurted out loudly, “My God, this poor guy has been getting screwed since 1946!” It was probably inappropriate to say such a thing out loud in that place but I couldn’t help myself.

The other service officer sitting across the table from me shushed me disapprovingly—mustn’t make VA employees feel bad, might be taken as adversarial!


I shrugged and lowered my voice, “Hey, it wasn’t THESE folks that messed him over; it was folks LIKE these, only 60 years ago!”


I read further and my indignation rose like water in a stopped up toilet bowl. Late in ’46, just 11 months after his discharge, he had submitted an initial claim for an arthritic condition affecting much of his body. In fact, his discharge orders put him out of the Commonwealth Army as being “physically disqualified for further service.”

“How could they have POSSIBLY denied this guy service connection for his arthritis? He applied for it less than a year from his discharge and the discharge document itself establishes that he had a condition serious enough to warrant putting him out for it. Something’s not right,” I muttered.

I continued to read the sequence of events, muttering and shaking my head for the half-hour it took me to get through the history of his decades of appeals. The veteran was nothing if not persistent; he had pressed his appeals through the 50s, 60s, 70s, 80s, 90s, through every decade until he finally enlisted me for one last crack at trying to make the VA to reverse this obviously unjust decision.

The problem with finding errors made by long dead VA employees is that it is almost impossible to get someone in the VA appeals hierarchy, namely a VA judge, to ever consider reversing the decades old decisions, no matter how wrong. The primary reason: cost—even a relatively small error can end up being extremely expensive for the VA, adding up to hundreds of thousands of dollars depending on how far back the payments go.

In the case of this octogenarian Fil-vet, his 1946 claim had been illegally denied outright by some self-righteous American ratings official. The pious jerk had seen a 1945 medical document calling the veteran’s arthritic condition as gonorrheal in origin and that idiot rater denied the claim based strictly on his moral outrage.

Consequently, the veteran, still not much more than a teenager at the time, was not even given the benefit of a compensation and pension (C&P) exam until almost 5 years after the original claim. It took that long for a Board of Veterans Appeals judge to finally acknowledge the unlawful denial from over four years before, and doing so, the judge remanded the appeal back to Manila, forcing them to finally examine the veteran.

But there was a problem with this sneakily obtuse judge’s remand; he specifically ordered that the examiner was only supposed to determine if the arthritic condition could be likely determined to have stemmed from the long-resolved gonorrheal condition. In effect, he rigged the whole thing against any possibility of service connection.

At the exam, the doctor told the vet that his condition was easily 100% severe, but in his report he stated that it could not be determined if gonorrhea was the cause. So, once again, VARO Manila found a way to deny this man’s worthy claim, saying in the decision letter that the condition could not be proven to be compensable to at least the 10% level within a year of discharge.

To recap, the man is discharged because of arthritis; he applies for compensation and treatment 11 months after being processed out of the service; a self-righteous rater denies him an exam; he gets his exam, but 5 years later; and finally, his claim is denied by a judge because the VA did not examine him when they were supposed to. When I was in the military we used to call this being “railroaded.”

Yet, the veteran never gave up on this claim. He continually sought to reopen it; for 60 years he did this until he found me. And I did indeed manage to get it reopened by having a doctor review all the available medical evidence going all the way back to the 40s. He determined that the arthritis was never gonorrheal in the first place, because joint pain stemming from it disappears once the disease is resolved, which it had been months before his discharge. The doctor also stated that the remand was impossible to comply with from the start; there was no way that the arthritis etiology could ever have been determined five years after onset.

But, he did say that the patient’s arthritis was more likely to have stemmed from his participation in combat during the difficult 4 months of defending the Bataan perimeter, an ordeal that included starvation and diseases like beriberi, not to mention what he went through surviving the horrible trauma of The Death March. His joint pains started not long after his escape from the Death March, and continued off and on during his time as a guerrilla, right up until his discharge at the tender young age of 20.

I put together what I thought was a surefire package that definitely proved that this ancient veteran’s condition was surely caused by what he went through during the war, but no, we recently received a letter from the AMC (Appeals Management Center) in Washington DC, that simply stated there continues to be no current medical evidence showing a connection to service. Reading AMC’s “reason for decision,” it was if they had never bothered to read a single sentence of any of my dozen page narrative. I was furious reading it and it has not lessened in the week that has passed, which is partly why I now write this.

But I also write this because now, this old veteran who fought the bloodily suicidal delaying action from La Union south to Bataan, fought on through the defense of Bataan, survived the Death March, and then years as a guerrilla, is now in ICU with a terminal heart condition. It’s not likely that he will live the week.

So, in the end, the VA wins this battle after all. They waited him out and now he is about to pass on; and once he dies, his claim dies with him. If only I had been around to help him in 1946. I would surely have kicked the VA’s ass big time, since I would have known what to do to force them to do right, to make them comply. He had no clue as to what to do to win, just as veteran claimants of today, who try to deal with this institution, have no clue what to do. The only sure way is to get someone like me, an experienced trained service officer to guide them through the ordeal of the process.

As my time doing this stuff comes to an end in a few short months, I worry about all the other veterans out there, who even now, more than 60 years after this old Fil-vet got royally screwed by the “VA denial machine,” find themselves at the capricious whims of the same adversarial VA mindset that existed in 1946.

Here’s the problem, “you don’t know what you don’t know…”

Update: The veteran is gone now so I can mention his name. He was Baldomero, my friend and my client. His common law wife just left the house and for quite some time we talked about her beloved Baldomero. And there's a surprise: The BVA judge ruled in favor of Baldomero's 63 year old claim! The ruling shocked me to the core, especially considering that several Board of Veterans Appeals judges had ruled against the claim for service connected compensation, not just once, but time after time, going back 6 decades. I figured that even if we DID convince the judge of the error that had been committed that he would make the start date to maybe a few years ago; perhaps to the date of the beginning of the current appeal. But no, he properly awarded it retroactively all the way back to 1946. Incredible! I say that not because it was a wrong decision, but because this judge actually READ my arguments and he GOT IT. If only it could have happened a few months earlier. If so, Baldomero would be alive today. For only a few tens of thousands of dollars he could have had his stint. His heart would STILL be beating today. The fact that it's not breaks mine....

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1 Comments:

At 6:17 AM, Blogger Chris said...

Yeah, and the idiots in Washington want to extend the same kind of service to the American people with Health Care. The people who voted for these fools should be ashamed to ever show their faces in a polling station again. This is a classic example of why we need less government, not more. Government employees playing God.......shameful.

 

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